The Great Election Grab: When
does gerrymandering become a threat to democracy?

The New Yorker, December 1, 2003

by JEFFREY TOOBIN

With his West Texas twang, loping swagger, and ever-present
cowboy boots, Charlie Stenholm doesnt much look like or
sound like anybodys idea of a victim. Since 1979, he has
been the congressman for a sprawling district west of Dallas,
and his votes have reflected the conservative values of the cattle,
cotton, and oil country back home. He opposes abortion, fights
for balanced budgets, and voted for the impeachment of President
Clinton. His Web site features photographs of him carrying or
firing guns. Through it all, though, Stenholm has remained a
member of the Democratic Party, and for that offense he appears
likely to lose his job after the next election.

Stenholm was a principal target in one of the more bizarre
political dramas of recent yearsthe Texas redistricting
struggle of 2003. Following the 2000 census, all states were
obligated to redraw the boundaries of their congressional districts
in line with the new population figures. In 2001, that process
produced a standoff in Texas, with the Republican state senate
and the Democratic state house of representatives unable to reach
an agreement. As a result, a panel of federal judges formulated
a compromise plan, which more or less replicated the current
partisan balance in the states congressional delegation:
seventeen Democrats and thirteen Republicans. Then, in the 2002
elections, Republicans took control of the state house, and Tom
DeLay, the Houston-area congressman who serves as House Majority
Leader in Washington, decided to reopen the redistricting question.
DeLay said that the current makeup of the congressional delegation
did not reflect the states true political orientation,
so he set out to insure that it did.

This was a fundamental change in the rules of the game,
Heather Gerken, a professor at Harvard Law School, said. The
rules were, Fight it out once a decade but then let it lie for
ten years. The norm was very useful, because they couldnt
afford to fight this much about redistricting. Given the opportunity,
that is all they will do, because its their survival at
stake. DeLays tactic was so shocking because it got rid
of this old, informal agreement. But Texas law contained
no explicit prohibition on mid-decade redistricting, so the leadership
of the state government, now unified in Republican hands, tried
during the summer of 2003 to push through a new plan. Democrats
attempted novel forms of resistance. In May, fifty-one House
members fled to Oklahoma, to deprive the new leadership of a
quorum; in July, a dozen senators decamped to New Mexico, for
the same purpose. But defections and the passage of time weakened
Democratic resolve, and, on October 13th, the plan sponsored
by DeLay was passed.

They did everything they could to bust up my political
base, Stenholm told me. They drew my farm and where
I grew up into the Amarillo district, and they drew Abilene,
where I live now, into the Lubbock district. As a result,
Stenholm will be forced to run in one of these districts if he
wants to remain in the House. The new map creates similar problems
for half a dozen other incumbent Texas Democrats, so the reapportionment
may add as many as seven new Republicans to the G.O.P. majority
in the House of Representatives and shift the states delegation
to 22-10 in favor of the Republicans. Politics is a contact
sport, Stenholm said. Ive been in this business
twenty-five years. I will play the hand I was dealt.

In Texas and elsewhere, redistricting has transformed American
politics. The framers of the Constitution created the House of
Representatives to be the branch of government most responsive
to changes in the public mood, but gerrymandered districts mean
that most of the four hundred and thirty-five members of Congress
never face seriously contested general elections. In 2002, eighty-one
incumbents ran unopposed by a major party candidate. There
are now about four hundred safe seats in Congress, Richard
Pildes, a professor of law at New York University, said. The
level of competitiveness has plummeted to the point where it
is hard to describe the House as involving competitive elections
at all these days. The House isnt just ossified;
its polarized, too. Members of the House now effectively
answer only to primary voters, who represent the extreme partisan
edge of both parties. As a result, collaboration and compromise
between the parties have almost disappeared. The Republican advantage
in the House is modestjust two hundred and twenty-nine
seats to two hundred and sixbut gerrymandering has made
the lead close to insurmountable for the foreseeable future.

There is, it appears, just one chance to change the cycle.
On December 10th, the United States Supreme Court will hear arguments
in a case that could alter the nature of redistrictingand,
with it, modern American electoral politics. The court has long
held that legislators may not discriminate on the basis of race
in redistricting, but the question now before the court is whether,
or to what extent, they may consider politics in defining congressional
boundaries. There is a sense of embarrassment about what
has happened in American politics, Samuel Issacharoff,
a professor at Columbia Law School, said. The rules of
decorum have fallen apart. Voters no longer choose members of
the House; the people who draw the lines do. The court seems
to think that something has to be done. The case could
well become the courts most important foray into the political
process since Bush v. Gore. As Ronald Klain, a Democratic lawyer
in election-law cases, puts it, At stake in this case is
control of Congressnothing more, nothing less.

The off-cycle timing of the Texas redistricting fight, as
well as the farcical drama of the fleeing Democratic legislators,
made the saga look like a colorful aberration. But the results
of that altercation merely replicated what happened, after the
2000 census, in several other states where Republicans controlled
the governorship and the legislature. Even in states where voters
were evenly divided, the Republicans used their advantage in
the state capitals to transform their congressional delegations.
In Florida, the paradigmatically deadlocked state, the new district
lines sent eighteen Republicans and seven Democrats to the House.
In the Gore state of Michigan, which lost a seat in redistricting,
the delegation went from 9-7 in favor of the Democrats to 9-6
in favor of the Republicanseven though Democratic congressional
candidates received thirty-five thousand more votes than their
Republican opponents in 2002. (The Michigan plan was approved
on September 11, 2001, so it received little publicity.) Pennsylvania,
which also went to Gore, had one of the most ruthless Republican
gerrymanders, and it is the one being challenged before the Supreme
Court.

After 2000, Pennsylvania lost two seats in Congress, and its
legislature had to establish new district lines. Republican legislative
leaders there engaged in no subterfuge; they candidly admitted
that they intended to draw the lines to favor their party as
much as possible. In the midst of the battle over the Pennsylvania
plan, DeLay and Dennis Hastert, the Speaker of the House, sent
a letter to the Pennsylvania legislators, saying, We wish
to encourage you in these efforts, as they play a crucial role
in maintaining a Republican majority in the United States House
of Representatives. The Republicans in Harrisburg used
venerable techniques in redistricting, like packing,
cracking, and kidnapping. Packing concentrates
one groups voters in the fewest possible districts, so
they cannot influence the outcome of races in others; cracking
divides a groups voters into other districts, where they
will be ineffective minorities; and kidnapping places two incumbents
from the same party in the same district.

Frank Mascara was kidnapped. A Democrat first elected to Congress
in 1994, Mascara represented a district in the rugged industrial
country south of Pittsburgh. My district had been more
or less the same for about a hundred years, Mascara told
me on the porch of his house in Charleroi, which overlooks a
glass-making plant on the banks of the Monongahela River. The
son of a steelworker and the first member of his family to go
to college, Mascara worked his way through county politics until
he won his seat in the House. A lot of people couldnt
believe that a congressman lived in a house like mine,
he said, noting its aluminum siding and probable resale value
of about thirty-five thousand dollars. But thats
the kind of guy I am, he said. I go to church down
the street. I represent the average person.

With the Republicans in charge in Harrisburg, Mascara knew
he would be little more than a spectator to the redistricting
process. I still thought my district would for the most
part remain intact, he said. That didnt occur.
Mascara had met me at a McDonalds in Charlerois ragged
downtown, and then led me to his home on a quiet street called
Lincoln Avenue, where we parked because he has no garage. From
his porch, he pointed to our cars. The cars are in the
twelfth congressional district, and my house is in the eighteenth,
he explained. When they drew the new lines, they started
in Allegheny County, which is north of here, and made, like,
a finger out of that district, and the finger went down the middle
of the street where I live. The line came down to my house and
stopped. The Republicans meticulous line-drawing
through Charleroi was designed to force Mascara into a primary
battle with his fellow-Democrat John Murtha, which it did. Murtha
defeated Mascara, ending his congressional career and reducing
the Democratic presence in the House by one.

The Republicans carved up Pennsylvania into many strangely
shaped districts, which won monikers like the supine seahorse
and the upside-down Chinese dragon. Such nicknames
for gerrymandered districts go back to the origin of the term,
which was coined as an epithet to mock Massachusetts Governor
Elbridge Gerry, who in 1811 approved an election district that
was said to resemble a salamander. Like most gerrymanders throughout
history, the Republicans creation in Pennsylvania produced
the desired results. Even though a Democrat, Ed Rendell, won
the governorship in 2002, Republicans in that election took control
of twelve of the nineteen House seats.

Democrats accomplished less in the 2000 redistricting cycle
only because they controlled fewer states and thus could do less
to protect their interests. DeLays mid-cycle reapportionment
may be without precedent, but Democrats have their own inglorious
history of gerrymandering. Before the Texas coup this year, the
most notorious redistricting operation in recent years was the
one run by Representative Philip Burton, following the 1980 census
in California, which transformed the Democrats advantage
in House seats there from 22-21 to 27-18. In 2002, a Democratic
plan in Maryland turned that delegation from being evenly divided
to a 6-2 Democratic advantage, and Georgia Democrats gained two
seats in the House even though in the same election voters rejected
a Democratic governor and a Democratic United States senator.
In California, where Democrats also controlled the process, they
settled for protecting incumbents of both parties. There, in
2002, not one of fifty general-election House challengers won
even forty per cent of the total vote.

There is no doubt, though, that on balance the 2000 redistricting
cycle amounted to a major victory for Republicans. Even though
Al Gore and George W. Bush split the combined vote in Florida,
Pennsylvania, Ohio, and Michigan, Republican control of the process
meant that, after redistricting, the G.O.P. now holds fifty-one
of those states seventy-seven House seats. The important
thing to realize was in 1991 the Republicans had control of line-drawing
in a total of five congressional districts, one G.O.P.
redistricting expert told me. In 2001, it was almost a
hundred seats. Both parties made the most of it.

The transformation of congressional redistricting began long
before the 2000 census, and the crucial issue was race. In the
early nineteen-sixties, the Supreme Court, under Chief Justice
Earl Warren, transformed American politics by enforcing the principle
of one man, one vote, and requiring that all legislative districts
contain the same number of people. Before these decisions, which
started with the famous case of Baker v. Carr, in 1962, Southern
(and some Northern) states had designed districts so that black
voters had no meaningful say in Congress. Later in the decade,
the Voting Rights Act established the principle that not only
did blacks have the right to vote but they had to be placed in
districts where black candidates stood a good chance of winning.
The act, which was one of Lyndon B. Johnsons most important
civil-rights initiatives, led to the election of many more black
members of Congressand was a classic demonstration of the
law of unintended consequences.

When the civil-rights movement started, you had a lot
of white Democrats in power in the South, Bobby Scott,
a congressman from Virginia who was first elected in 1992, said.
And, when these white Democrats started redistricting,
they wanted to keep African-American percentages at around thirty-five
or forty per cent. That was enough for the white Democrats to
keep winning in these districts, but not enough to elect any
black Democrats. The white Democrats called these influence
districts, where we could have a say in who won. But Republicans
sensed an opportunity. They came to us and said, We want
these districts to be sixty per cent black, Scott, who
is African-American, said. And blacks liked that idea,
because it meant we elected some of our own for the first time.
Thats where the unholy alliance came in.

The unholy alliancebetween black Democrats and white
Republicansshaped redistricting during the eighties and
nineties. Republicans recognized the value of concentrating black
voters, who are reliable Democrats, in single districts, which
are known in voting-rights parlance as majority-minority.
As Gerald Hebert, a Democratic redistricting operative and former
Justice Department lawyer, puts it, What you had was the
Republicans who were in charge for every redistricting cycle
at the Justice Department81, 91, 01.
And there was a kind of thinking in the eighties and in the early
nineties that if you could create a majority-minority district
anywhere in the state, regardless of how it looked and what its
impact was on surrounding districts, then you simply had to do
it. What ended up happening was that they went out of their way
to divide and conquer the Democrats. The real story of
the Republican congressional landslide of 1994, many redistricting
experts believe, is the disappearance of white Democratic congressmen,
whose black constituents were largely absorbed into majority-minority
districts.

It was a version of the unholy alliance which may doom Charlie
Stenholm and his fellow Texas Democrats. All the congressmen
who are likely to lose their jobs in the new DeLay plan are white.
Many of their black constituents have been transferred to safe
Democratic seats, where they cant harm Republicans. The
unholy alliance has had the additional side effect, especially
in the South, of making the Democrats the party of blacks and
the Republicans the party of whiteswhich presents daunting
long-term political problems for the Democratic Party. Many Democrats
cant help but express a perverse admiration for the cleverness
of the strategy. Benjamin Ginsberg, a Republican redistricting
operative who helped to construct the unholy alliance during
the 1990 cycle, referred to the initiative as Project Ratfuck.

Since the 2000 cycle, these Republican gains have locked in
and even expanded. To see how this was done, I asked Nathaniel
Persily, a genial assistant professor of law and political science
at the University of Pennsylvania, to visit my office and bring
his laptop. Persily, who is thirty-three, has built a reputation
as a nonpartisan expert and occasional practitioner in the field
of redistricting.

Before 1990, most state legislators did their redistricting
by taking off their shoes and tiptoeing with Magic Markers around
large maps on the floor, marking the boundaries on overlaid acetate
sheets. Use of computers in redistricting began in the nineties,
and, as Persily demonstrated, it has now become a science. When
Persily opened his computer, he showed me a map of Houston, detailed
to the last census block. (The population of each block usually
ranges from fewer than a dozen to about a thousand.) This
is the same map that DeLays people used to redistrict,
Persily said. Indeed, DeLays political operation purchased
ten copies of the software, which is called Calipers Maptitude
for Redistricting and costs about four thousand dollars per copy.
The software permits mapmakers to analyze an enormous amount
of dataparty registration, voting patterns, ethnic makeup
from census data, property-tax records, roads, railways, old
district lines. Theres only one limit to the kind
of information you can use in redistrictingits availability,
Persily said. (In Pennsylvania, Republicans used Carnegie-Mellon
Universitys mainframe computer, which would have allowed
them to add even more data, such as real-estate transactions.)

With a few clicks, Persily changed the map from one that showed
party registration in each census block to one that revealed
voting results in each block. The colors ranged from dark red,
for heavily Democratic votes, to dark blue, for strongly Republican.
He showed voting results in about two dozen races, from President
to governor and from congressman to local offices. The
whole process has got much more sophisticated, Persily
went on. Party-registration data are not the only kind
of data you want to use. You want to use real election results.
Thats a big change from ten years ago. We have become very
good at predicting how people are going to vote. Peoples
partisanship is at a thirty-year high. If I know you voted for
Gore, I am better able to predict that you are going to vote
for any given Democrat in a future election.

I asked Persily to give me a demonstration of how to draw
district lines. He moved his mouse to the border between two
congressional districts. A ledger on the top half of the screen
showed that one of the districts, as currently configured, had
about forty thousand more people than the other one. The
Supreme Court has said that the requirement of one man, one vote
means that each district must have exactlyexactlythe
same number of people, Persily explained. An early version
of the Pennsylvania plan was rejected by the courts because the
districts were just nineteen voters apart, in districts of about
a half million people. Requirements for that sort of precision
virtually mandate the use of computers for redistricting.

Persily zeroed in even more closely, and a little donkey popped
up inside one of the census blocks. Thats where the
local congressman lives, a Democrat, he explained. We
have little elephants for the Republican incumbents. The
program seemed easy to use, justifying the boast, on the software
companys Web site, that you could start building
plans thirty minutes after opening the box. Persily chuckled.
At a certain point, you admire the video-game appeal of
all this.

There used to be a theory that gerrymandering was self-regulating,
Persily explained. The idea was that the more greedy you
are in maximizing the number of districts your party can control,
the more likely it is that a small shift of votes will lead you
to lose a lot of districts. But its not self-regulating
anymore. The software is too good, and the partisanship is too
strong.

The effects of partisan gerrymandering go well beyond the
protection of incumbents and the guarantee of continued Republican
control. It has also changed the kind of people who win seats
in Congress and the way they behave once they arrive. Jim Leach,
a moderate Republican and fourteen-term congressman from Iowa,
has watched the transformation. Leach agrees with Richard Pildes
on the numbers: A little less than four hundred seats are
totally safe, which means that there is competition between Democrats
and Republicans only in about ten or fifteen per cent of the
seats.

So the important question is who controls the safe seats,
Leach said. Currently, about a third of the over-all population
is Democrat, a third is Republican, and a third is no party.
If you ask yourself some mathematical questions, what is half
of a third?one-sixth. Thats who decides the nominee
in each district. But only a fourth participates in primaries.
What is a fourth of a sixth? A twenty-fourth. So its one
twenty-fourth of the population that controls the seat in each
party.

Then you have to ask who are those people who vote in
primaries, Leach went on. They are the real partisans,
the activists, on both sides. A district that is solidly Republican
is a district that is more likely to go to the more conservative
side of the Republican part of the Party for candidates and platforms.
Presidential candidates go to the left or the right in the primaries
and then try to get back in the center. In House politics, if
your district is solidly one party, your only challenge is from
within that party, so you have every incentive for staying to
the more extreme side of your party. If you are Republican in
an all-Republican district, there is no reason to move to the
center. You want to protect your base. You hear that in Congress
all the time, in both partiesWeve got to appeal
to our base. Its much more likely that an incumbent
will lose a primary than he will a general election. So redistricting
has made Congress a more partisan, more polarized place. The
American political system today is structurally geared against
the center, which means that the great majority of Americans
feel left out of the decision-making process.

Scholarly research gives some support to Leachs impressions.
Partisan gerrymandering skews not only the positions congressmen
take but also who the candidates are in the first place,
Issacharoff, of Columbia, said. You get more ideological
candidates, the people who can arouse the base of the party,
because they dont have to worry about electability. Its
becoming harder to get things done, whether in Congress or in
state legislatures, because partisan redistricting goes on at
the state level, too. Among members of the House, partisan
redistricting has also bred an almost comic sense of entitlement
to landslides. In a hearing on the post-2000 reapportionment
in New York, Representative Benjamin Gilman, an upstate Republican,
said that during the 1982 redistricting he was promised by the
majority leader of the state senate that if I accepted
that challenge of a fair-fight district, I would never again
be asked or forced by the state to face that prospect of a fair
fight once again. . . . I think it would be unfair not only to
myself and my district to face that divisive prospect once again.

With partisan gerrymandering, House members in effect pay
a penalty if they reach out too much to members of the other
party. What is laughable is the basic premise of what is
going on, Charlie Stenholm, the endangered Texan, said.
The great sin I committed is that I won the last election
51-47 in a district that went 71-28 for President Bush. But I
am a conservative Democrat, and thats why these people
vote for me. There shouldnt be a penalty for reaching out
across party lines. If Stenholm and his ilk disappear,
they will be replaced by reliable Republicanswho wont
have to worry about their own chances for reëlection.

The question before the Supreme Court later this month is
not whether partisan gerrymandering is wise but whether it is
constitutional. The issues are strikingly similar to those faced
by the Warren Court in the early sixtiesand the stakes
may be as large as well. The framers of the Constitution designed
the House of Representatives to reflect the popular will. James
Madison, in the Federalist Papers, said the House was meant to
be a numerous and changeable body, where the members
would have an habitual recollection of their dependence
on the people. While the House was supposed to be impetuous,
the Senate was intended to be stable. Madison said that senators
would serve six-year terms as a defense against the impulse
of sudden and violent passions of the House, and the members
of the Senate were to be elected by state legislators, providing
a further level of insulation from the popular will. (The Constitution
was amended to require direct election of senators in 1913.)
The Senate had to remain stable, Madison wrote, because every
new election in the states is found to change one half of the
representatives.

Today, the House and the Senate have precisely flipped roles.
Senate races, which are not subject to redistricting, are decided
by actual voters, who do indeed change their minds with some
regularity. Control of the Senate has shifted five times since
the nineteen-eighties. The House, by contrast, has changed hands
just once in the same period, in the Republican takeover of 1994.
In 2002, only one out of twelve House elections was decided by
ten or fewer percentage points, while half of the governors
and Senate races were that close. In 2002, only four House challengers
defeated incumbents in the general electiona record low
in the modern era. In a real sense, the voters no longer select
the members of the House of Representatives; the state legislators
who design the districts do.

The question, then, is what, if anything, is unlawful about
that? The legal debate on that question is especially stark.
In the case now before the Supreme Court, Pennsylvania Democrats
argued that the Republican gerrymander denied them equal protection
of the laws, asserting in their brief that it is unconstitutional
to give a States million Republicans control over ten seats
while leaving a million Democrats with control over five.
The Republican response is to say, in effect, Welcome to
the big leagues. State legislatures have always played this kind
of hardball, the courts ought to stay out of the game altogether,
and theres no such thing as a nonpartisan solution.
Justice Sandra Day OConnor, a former Arizona state senator
herself, may have put the argument best when, in the mid-eighties,
the Supreme Court last considered a political-gerrymandering
case. According to Justice William Brennans notes of the
courts internal debate, OConnor said that any legislative
leader who failed to protect his partys interest in redistricting
ought to be impeached.

In that case, a challenge to the congressional-reapportionment
plan in Indiana following the 1980 census, a plurality of the
justices said for the first time that a partisan gerrymander
might, in theory, violate the equal-protection clause. But in
the 1986 decision the court ruled that the Indiana plan did not
violate the Constitution. Indeed, the court said that the Constitution
was not violated unless one political party was essentially
shut out of the political process. According to Heather
Gerken, of Harvard, The court set the bar so high for constitutional
violations that no one has ever successfully fought a partisan
gerrymander anywhere since 1986. Political parties are never
totally shut out of the processthey raise funds,
put up candidates, make speeches. So these challenges have always
lost. By taking the Pennsylvania case, the court seems to be
saying that its time to get back in the process.

The best argument for Republicans in the Pennsylvania case,
it seems, is that its simply not the courts business
to scrutinize legislative maps for partisan gerrymandering. Redistricting
deals with inherently political questions, J. Bart DeLone,
the senior deputy state attorney general who will argue for the
case for Pennsylvania, said, and those questions should
be left to the political branches of government, where they belong,
not to the courts. Then you are trying to measure things that
have no standards unless you are making political judgments.
Still, this is a Supreme Court that has not hesitated to tell
politicians what to do. Its an extremely confident
court, Gerken said. They second-guess Congress, states,
state judges all the time. They are deeply engaged in the democratic
process. I cant imagine that this is anything but an effort
to pull in the reins of partisan gerrymandering.

But how? The Democrats propose a rule based, in part, on the
Courts race jurisprudence. In a series of cases in the
nineties which challenged some of the majority-minority districts,
the Court held that it violated the Constitution for states to
gerrymander congressional districts exclusively for racial reasons.
The rule now is, You cant draw ugly districts if
its purely for race, Sam Hirsch, one of the lawyers
for the Pennsylvania Democrats, said. The rule should be,
You cant draw ugly districts if its purely for politics,
either. But Hirschs adversary, DeLone, pointed out,
There is a fundamental difference between race and politics.
Racial classifications are inherently suspect. If you are doing
something specifically because of race, we are always going to
take a hard look at it. Not only are political judgments O.K.
but we expect them. Since its been so long since
the Supreme Court addressed the issue, most election-law experts
see the Pennsylvania case as difficult to handicap, and the key
factor may simply be how bad the justices believe the problem
of partisan gerrymandering to be.

In any case, the situation appears to be getting worse, even
as the Pennsylvania case has been pending. While Texas was shifting
its districts, the governing Republicans in Colorado did their
own mid-cycle reapportionment, to solidify their hold on the
one House seat in the state that produced a close election in
2002. (Legal challenges to the new Texas and Colorado districts
are now pending.) At one point, the Democrats who control Oklahoma
and New Mexico threatened retaliation, but the Party lacks a
DeLay-like figure to press the issue. One state that has gone
its own way is Iowa, which turned redistricting over to a nonpartisan
civil-service commission after the 2000 census. Consequently,
four of Iowas five House races in 2002 were competitive,
so a state with one per cent of the seats in the House produced
ten per cent of the nations close elections. The rest of
the country will follow only, it seems, if the Supreme Court
requires it.

When it comes to drawing political boundaries, there never
was a golden age of statesmanship. When we Democrats controlled
the legislature, sure we protected Democrats, Charlie Stenholm
said. But we didnt do harm to the Republicans who
were in office. This thing today is a whole different order of
magnitude. On his porch in Charleroi, Frank Mascara said
the issue is a lot bigger than he is. Im through,
Im done, out of politics, he said. It wont
affect me one way or the other. But the system is now totally
out of whack, and that matters to a lot of people. Its
not about me, its about power on a national scale.